State of Iowa v. Jason Curtis Voshell

IN THE COURT OF APPEALS OF IOWA

No. 23-1059
Filed July 3, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JASON CURTIS VOSHELL,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Robert J. Richter,

Judge.

A criminal defendant appeals his discretionary sentence following a guilty

plea. AFFIRMED.

Kent A. Simmons, Bettendorf, for appellant.

Brenna Bird, Attorney General, and Anagha Dixit, Assistant Attorney

General, for appellee.

Considered by Ahlers, P.J., and Chicchelly and Buller, JJ.
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BULLER, Judge.

Jason Curtis Voshell sexually assaulted a twenty-one-year-old woman at a

pool party. When a group of people including the victim posed for a photo in the

pool, Voshell swam up behind the victim, slid her bikini bottoms down, and rubbed

his penis against her exposed vagina for approximately two minutes. Voshell later

told another attendee he “put [his] finger in [the victim’s] pussy” but denied

intentionally assaulting her when questioned by police.

The Dubuque County Attorney charged Voshell with sexual abuse in the

third degree, a class “C” felony in violation of Iowa Code

section 709.4(1)(a) (2020). Voshell eventually pled guilty to assault with intent to

commit sexual abuse without injury, an aggravated misdemeanor in violation of

Iowa Code section 709.11(3). The plea agreement provided for open

sentencing—both the State and Voshell could argue for any sentence. And the

presentence investigation report (PSI) recommended a suspended prison

sentence and probation. Before sentencing, the district court received a victim

impact statement, typed by the victim’s mother, that described the impact of the

offense on the victim.

At sentencing, the State recommended a two-year prison sentence while

Voshell asked for a deferred judgment and probation. The district court imposed

a one-year jail sentence with all but 180 days suspended. And it gave the following

explanation of reasons for sentencing:

Okay. Mr. Voshell, when I make a decision about what the
appropriate sentence is in every case, I have to consider several
factors. And these are the factors that I’m considering when I come
up with this sentencing plan for you.
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I do consider your age, whether you’re old enough to know
better, that sort of thing. Clearly I think at this point you should have
understood that you can move past criminal behaviors when you’re
an adult and should know better. I do consider your family situation
and the impact that a sentence would have on your current family
situation. So I do consider the upcoming birth of your child and the
fact that you currently have a child that you are taking care of. I also
consider the need to recognize that this will have an impact on your
employment, both current and future.
But I have to balance all of that against several other factors.
The need for deterrence. I don’t want to see this happen again.
Rehabilitation—to make sure that you are going to be a productive
member of our community. Also the nature of the charge, your
criminal history, and harm to any victim.
Here there is no doubt that someone who is touched
inappropriately and assaulted with the sexual intent suffers trauma.
That’s the reality of crimes like that. And I believe everything that’s
written out in the victim impact statement about what the mother has
observed of the victim. I also understand that maybe you are sincere
with what you’re saying; so I don’t doubt that. But there is an element
of this that the community is watching, and people need to know that
if you do things like this, there’s going to be consequences. You
need to know that as well.
And so when I balance everything out and recognize all of
those factors, I find that the appropriate sentence is a 365-day jail
sentence. It will be suspended with the exception of 180 days in jail.
So you’re going to serve 180 days in jail. The rest of the suspended
sentence you’ll be on formal probation for two years. I will enter a
fine of $1,000, a civil penalty of $260, impose the special sentence,
and the sex offender registry requirements.
All in all, Mr. Voshell, I don’t think this should be viewed by
you as a reflection of what I think you can be in the future just
because I’m imposing a jail sentence and not giving you a deferred
or completely suspended sentence. It’s just an acknowledgement of
actions have consequences. And for you this is what it is.

The court also delayed mittimus so that Voshell could have time at home with a

child expected in the near future. But the court denied Voshell’s request to serve

the jail sentence as home confinement.

Voshell appeals, raising an issue concerning the victim impact statement

and the court’s discretion in selecting a sentence.
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Victim impact statement. Voshell first argues the victim impact statement,

written by the victim’s mother rather than the victim personally, should not have

been considered by the sentencing court. See Iowa Code § 915.10(3) (defining

“victim”). The State contests error preservation because Voshell did not object

below. We conclude Iowa case law implicitly supports the State’s position and a

criminal defendant must object to preserve a claim that a victim impact statement

is not authorized by statute.

Our court addressed a bit of a mirror for this issue in State v. Williams, an

unpublished case where the defendant wanted a relative falling within the statutory

definition of victim to make a statement before sentencing that might have been

mitigating. No. 18-1402, 2019 WL 2144771, at *1 (Iowa Ct. App. May 15, 2019).

We held that, because Williams was challenging the sentencing procedure rather

than the legality of the sentence, he had to preserve error and we could not reach

his claim. Id. at *1; see State v. Carter, No. 22-1016, 2023 WL 2673226, at *3

(Iowa Ct. App. Mar. 29, 2023) (“[W]hile many sentencing issues defy the normal

rules of error preservation, this one doesn’t. Without any objection from [the

defendant] at the sentencing hearing, the court could consider the victim impact

evidence.” (internal citation omitted)). In an analogous case, the supreme court

considered whether sentencing counsel was ineffective for not objecting to victim

impact statements given by persons who fell outside the scope of the statutory

definition of “victim.” State v. Tesch, 704 N.W.2d 440, 450 (Iowa 2005). The

contortions of an ineffective-assistance claim would not have been necessary if

the claim did not require error preservation and could have been raised as a direct-

appeal sentencing challenge, which supports the State’s position here.
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Much like in Williams, we conclude here that Voshell’s challenge is to the

sentencing procedure rather than the legality of the sentence itself, and he was

required to object “at the earliest opportunity after the grounds for the objection

become apparent.” See 2019 WL 2144771, at *1 (quoting Tindell v. State, 629

N.W.2d 357, 359 (Iowa 2001)). This is distinct from other sentencing challenges

with lessened error-preservation requirements where we do not require

defendants to object mid-stream as the court exercises its discretion and

announces reasons for sentencing. See State v. Gordon, 921 N.W.2d 19, 22–23

(Iowa 2018) (collecting cases on error preservation at sentencing). Unlike a

reasons-for-sentence error, Voshell had the opportunity to object earlier in the

hearing when the court asked his attorney whether they had reviewed the victim

impact statement—and rather than object, Voshell’s counsel confirmed he and his

client had reviewed the statement. Because a challenge to whether a victim impact

statement complied with the statute is a sentencing-procedure challenge that must

be preserved, we cannot reach Voshell’s claim.

Abuse of discretion. Voshell also contends the district court abused its

discretion and alleges the court considered only one factor—deterrence—when

imposing sentence. “[T]he decision of the district court to impose a particular

sentence within the statutory limits is cloaked with a strong presumption in its favor

and will only be overturned for an abuse of discretion or the consideration of

inappropriate matters.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). To

show an abuse of discretion, a defendant bears the burden to affirmatively show

that the district court relied on improper factors or clearly untenable grounds. State

v. Sailer, 587 N.W.2d 756, 759, 762 (Iowa 1998).
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While Voshell maintains the sentencing court considered deterrence to the

exclusion of all other potential factors, we do not read the transcript the same way.

The court expressly acknowledged Voshell’s age and maturity, family

circumstances, employment, prospects for rehabilitation, and (relatively sparse)

criminal history—in addition to the need for general and specific deterrence, the

nature of the offense, and the harm to the victim. This is essentially a textbook-

proper list of sentencing considerations. See Iowa Code § 907.5(1). We discern

no abuse of discretion.

Voshell also claims the judge had a fixed sentencing policy. But we see

nothing in the court’s statements to suggest a fixed sentencing policy for cases

involving sexual assault, and we have no reason to believe the court would not

impose a sentence of probation in a case where pertinent factors warranted it. Our

conclusion is buttressed by the fact Voshell did not receive the prison sentence

recommended by the State or the suspended prison sentence recommended by

the PSI, which suggests some mitigating factors outweighed some aggravating

factors. And we find this record is easily distinguished from fixed-sentencing-policy

cases. See, e.g., State v. Hildebrand, 280 N.W.2d 393, 395 (Iowa 1979) (finding

a fixed sentencing policy where the court announced it would not grant deferred

judgments in cases that involved car accidents).

AFFIRMED.